News Release

Janet Hayes: Right-to-work laws and a changing future

As we stand here in January, surveying the legal landscape, only one thing is certain: We have just taken our seats on the rollercoaster of change.

It is likely that a host of regulations, executive orders, and federal agencies affecting employers are targeted for revision in 2017. Speculation abounds over anticipated changes. One issue, however, seems to be largely overlooked and underreported: the battle over right-to-work laws.

Most people are understandably confused by the term “right to work.” No, these laws do not guarantee employees an absolute right to a job. They do not provide some magical safe harbor where employees can work forever without fear of termination.

Right-to-work laws relate to unions. They protect employees who refuse to join a union or pay dues. In general, these laws say that employees can not be fired for refusal to affiliate with a union. It is rather ironic that unions historically originated to protect workers from certain employer tactics. Now, these laws strive to protect employees from certain union tactics.

Right-to-work has seen an unprecedented expansion in recent months, with both state and local governments adding rules. The expansion is fueled by economics. Because the laws are perceived to weaken unions, areas with these laws are far more attractive for new businesses who seek to keep unions out.

Already this month, Kentucky passed a law making it the 27th right-to-work state. Kentucky, bordered by right-to-work states, including Tennessee, cited several instances where it had been vying for business that was ultimately lost because companies saw better opportunities to locate in union-free neighboring states.

Because some state governments will not pass the laws, many local counties and towns have passed right-to-work ordinances in an effort to attract business and jobs. Federal judges, however, are split on the legality of such local right-to-work rules. The Sixth Circuit, which includes Tennessee, has validated the ordinances. However, federal judges in other areas say local governments have no authority to enact right-to-work laws. In fact, already this month, an Illinois federal judge struck down a right-to-work ordinance passed by the village of Lincolnshire.

The conflict is hot – to the point of boiling. These laws have a direct and converse impact on two of our country’s sacred cows: unions and business development. To strengthen one without damaging the other will require open-mindedness from all sides.

As the rollercoaster of change takes off, it seems inevitable that the Supreme Court will be called upon to address right-to-work laws – at least the legality of local ordinances. This will be just one of many 2017 battles where the need to incentivize employers to develop jobs faces the need to protect employees from unfair workplace practices.

As is always the case, when we alter the course, the ride is sure to be a little bumpy. Employers, hang on and keep your eyes on the twists and turns that are surely lurking ahead.